need your wisdom

[skye]

MY ex and I just went to court on his back CS..he has not spoken to his daughter in over a year..told her he would not talk to her because mom was trying to put him in jail...


We had an issue with the last visitation ( over a year ago ) where he was smoking pot in front of daughter and she came home and told me about it..I wrote him the following


" I know I have absolutely no control over what you do in your home, However we have a bright beautiful 12 year old child who is ADHD and believes her Father can do no wrong, She has told me you were smoking pot in front of her and I would like to let you know that I feel you are setting a very bad example for her"


so today I got served with a MTA the order asking for visitation portion to be changed from reasonable visitation a specific visitation yet nothing is stating exactly what he wants...he stated on MTA "Mother will not let visitaion stand"

since he has an attny and I do not should I send an offer until the hearing or just wait ..he has  made no effort to call or ask for anything..and I have no number to reach him

[socrateaser]

Usually, an attorney opposing  a pro se litigant will make no effort to negotiate or communicate, because (1) the attorney thinks that he/she can beat you in the courtroom no matter what the facts of the case are, and (2) because the attorney believes, that even though negotiations towards settlement between litigants are usually inadmissible, that you will probably ignore the privilege and use any information gained against the attorney's client.

There are lots of times that a judge receives evidence and then rules it inadmissible, but the judge still "knows" about the evidence, and it absolutely affects the decision. A Judge is only human, after all (well, barely human, anyway).

So, unless you initiate negotiations in a "lawyer-like" manner, you're not likely gonna get any response.

I don't know how your existing orders read, what the motion states, or your response, or any facts other than this pot smoking incident, so I can't comment on a strategy, other than to suggest, that you write the attorney and ask him/her to tell you exactly what his client wants, and you'll consider it.

[skye]

this is my response ...ok or not ok?


> Wednesday, December 22, 2004
>
> Dear Mr. *****,
> I am writing to you in regards to the MTA visitation I have received from
your client Ralph *****, Since Ralph has refused to even speak to our
daughter in almost a year this MTA came as quite a shock to me.
>
> I am willing to offer the following until court.
>
> Ralph can pick Theresa up every other Saturday he may pick her up at 12
noon and return her at 8pm.begining Jan. 1st 2005. I am willing to offer the
same time for Christmas day. If he should be more than 30 minutes late he
will forfeit that day.
>
> I am asking that he agree not be under the influence of intoxicating
liquor or any controlled substance (e.g. drugs) during any period of time
that he is to be with the Theresa.
>
> I am asking that he agree not to allow Theresa to ride in a car unless the
driver has a valid driver's license, auto insurance, and seat belts.
>
> I am asking that he  agree to  restrain from making negative statements
about me or any person in my Family  and  that he not allow ANY other person
to do so in her presence.
>
> I am sure you will agree that these are reasonable requests for the best
interest of our child.
>
> Sincerely,

[socrateaser]

Wednesday, December 22, 2004

 Dear Mr. *****,
 I am writing to you in regards to the MTA visitation I have received from your client Ralph *****, dated ??/??/??. Since Ralph has not spoken to our daughter in almost a year, this MTA comes as quite a surprise. I have no interest in preventing Ralph from spending meaningful time with Theresa, as long as her health, welfare and safety are adequately protected. To that end, I am willing to offer the following proposal pending our court hearing:

1. Ralph can pick Theresa up every other Saturday he may pick her up at 12 noon and return her at 8pm.begining Jan. 1st 2005. I am willing to offer the same time for Christmas day. If he should be more than 30 minutes late he will forfeit that day.

2. Ralph must agree to not be under the influence of intoxicating liquor or any illegal controlled substance during any period of time that he is to be with Theresa.

3. Ralph must agree to not permit Theresa to ride in a motor vehicle unless the driver has a valid driver's license, auto insurance, and seat belts.

4. Ralph must agree to refrain from making any negative statements about me or any person in my Family, and to remove Theresa from the presence of any other person who does so.

I will agree to sign a stipulated order to confirm the above agreement, as long as no other terms or conditions are inserted without my express written consent. Also, if you would like to propose a more permanent settlement plan, please feel free to contact me at your convenience.

 Sincerely,

[skye]

thank you you are wonderful

[skye]

I got first response back from attny:

Dear Skye,
I am in reciept of your letter dated 12-22-04, which I have passed on to Ralph. I agree that your requests are extremely reasonable and have advised my client to abide by them.  sincerely
                                                      *******


ok so he never shows up to see her then today I get this from his attny:

Dear Skye,
I had a chance to meet with ralph concerning your letter and while I agree with some things in the letter, I have a counter proposal concerning visitation. the standard or minimum visitation that my client would be entitled to is to have all of the natural holidays split equally between the parents. My client would be entiled to visitation every other weekend. aditionally he would like his daughter a minimum of 3 weeks during the summer. If you are agreeable to the weekend visitation  consisting of 6pm on Friday to 6pm on Sunday, I can write up a consent order for your review and endorsement and noone has to go to court on March 7th . let me hear from you sincerely  *****




OK I do not have a problem with him getting that in time but:

 1.he has refused to speak to her in over a year

 2.this is not the first time he has hopped in and out of her life its the 5th of record

3. There is drug use by him and it has happened in fromt of child

4. there are not enough bedrooms for her to stay over unless she shares bedroom with his 15 yr old stepson ( note our child is 13 )

5. there is no standard or minimum visitation standard in virginia.

6. If he wants to see her so bad how come he hasn't tried to see her for what I have agreed to until court..


but how do I write this up and not look like an a@@...please help me

[socrateaser]

Dear Mr. Attorney;

I am in receipt of your letter of ??/??/??. Since your prior correspondence of ??/??/??, and per our agreemnet, your client has had some opportunity to spend time with his daughter, but has not availed himself.

Regardless, I am not opposed to him having reasonable visitation. My difficulty lies in certain specifics that I am unsure how to resolve, and I would appreciate your suggestions as to how we can ensure against the following:

1. I am concerned about Ralph's past drug usage. Frankly, I don't care what he does when he is not with our daughter, but I don't want him intoxicated while he is exercising time with the child, nor do I want him engaged in any drug-related transactions (whether buying, selling, using, or being in the presence of other drug users) while our daughter is with Ralph.

2. As far as I'm aware, our daughter must share a room in Ralph's residence with his 15 year old stepson. In as much as our daughter is 13, I doubt that I need to be more precise in expressing my concern here. Our daughter must have some reasonable expectation of privacy.

The easy solution for issue number #2 is for Ralph to promise that our daughter will have the bedroom to herself, and that if she arrives and this is not the case, then the visitation should be immediately terminated. Obviously, our daughter would need to call me in order to effect this, which leaves some risk that Ralph may prevent this, and that is an additional concern.

The more difficult solution for #1 is for Ralph to make some good faith showing that he is not "using" now, and that he has not been using for some time now. To that end, I would like him to submit to a polygraph exam regarding this issue. I will agree that the evidence of the exam will not be used in court, and I would be willing to only view the report while under some third party's control, so that I can't copy it for my own use.

Obviously, if Ralph is not using, then he will have no difficulty with the exam. However, if he is using, he will refuse the exam, and this will tell me that he is using without Ralph having to pay out any money.

In the alternative, I am completely open to the idea of supervised visitation, with a step up to unsupervised visitation at some future date when I can be assured that our child will not be at some risk when she is with Ralph.

I suggest that if Ralph is not using drugs, then the likelihood of a problem regarding issue #2 is substantially reduced, so what I am saying, is that in my opinion, a polygraph exam, while expensive, would go far in aleviating most of my concerns.

In closing, I realize that what I am proposing is extremely intrusive to Ralph's personal privacy, and that he may reject the suggestion as unreasonable. However, I must put our child's best interests first, so, absent some better suggestions from your side, that is my current position.

I look forward to knowing your thoughts on all of this. If you have any questions or concerns, please do not hesitate to contact me.

Sincerely,

Skye

[skye]

That is why you are the man!!!!!

Thank you so much you are a great help

[skye]

sent out letter we went to court.. his attny asked me if I could speak with him as we were leaving court room.. he says " my client wants her this weekend" I said Saturday sure .. he said no fri-sun I said not at this time he said fine I will put you in jail .. now I have been served with a show cause and today I got a notice for pretrial for the show cause..

what is pretrial? show cause states " mom is denying reasonable visitation"

[socrateaser]

>what is pretrial? show cause states " mom is denying
>reasonable visitation"

Evidently, opposing counsel wants to have a probable cause hearing, i.e., he wants to charge you with criminal contempt of court, which, apparently in your jursidiction requires that the court arraign you on the charge, ask you to plead guilty or not guilty, and apprise you of your right to an attorney, that if you cannot afford one, one will be appointed for you, and that you have the right to remain silent.

In order to prove criminal contempt, he must prove each of the following beyond all reasonable doubt:

1) that there is a valid, enforceable court order (easily proven).
2) that you have knowledge of the court order (also easily proven).
3) that you willfully and with conscious disregard, violated the order (not easy to prove at all).

If your court order gives the other parent "resonable" visitation, then your opponent must prove that the request for visitation was reasonable and that you willfully and with conscious disregard, refused reasonable visitation.

If you flat out refused visitation on any and all grounds, then that might be unreasonable, but your opponent must prove, not only that it was unreasonable, but that it was unreasonable beyond all reasonable doubt.

If you stated "any" reasonable condition to mitigate your reasonable fear that the other parent is a danger, or might cause trauma to the child, then your denial was reasonable.

If you simply refused the weekend "because," then that's not reasonable.

The fact that you offered Saturday might show that you were not entirely unreasonable -- on the other hand, if your reason for refusing visitation, for the 3 days was simply a knee jerk reaction, rather than based on some articulable reason, then you were not reasonable.

We have discussed all of your reasons for refusing custody in the past. If those reasons are legitimate and based upon real concerns and conduct of the other parent, then if opposing counsel was not prepared to submit his client to conditions that mitigate your concerns, then you have created reasonable doubt.

However, if you are just stonewalling to demonstrate your ability to maintain control over your child and punish the child's father, then you are in trouble.

In any case, do not fool around. You need an attorney to defend you. If you can't afford one, then ask the court to appoint a public defender. DO NOT ATTEMPT TO DEFEND YOURSELF ON A CONTEMPT CHARGE AGAINST AN ATTORNEY WHO HAS STATED THAT HE INTENDS TO PUT YOU IN JAIL.